Wilfrid J. Waluchow
Constitutional interpretation is a highly controversial practice. It raises a host of questions concerning its nature, its limits and its legitimacy or justification. These questions have consumed much time and energy among constitutional theorists, lawyers, legal scholars and philosophers of law. But the ensuing debates have not been confined to the academy. On the contrary, they often emerge into public view, and engage the interest of journalists, commentators and sometimes the general population, when highly controversial issues of constitutional law are decided in landmark cases. Critics of a court’s decision sometimes complain that the judges have become far too “activist” by failing to restrict themselves to the task of interpreting the constitution, preferring instead to substitute their own views on the relevant moral and political issues for those expressly endorsed in the constitution—all under the guise of interpretation. Controversies arise, no less forcefully, when candidates are being considered for appointment to a court empowered to decide important constitutional issues. Serious questions concerning his approach to constitutional interpretation were front and center during the long, contentious process surrounding Robert Bork’s potential appointment to the U.S. Supreme Court. Opposition revolved around two principal concerns: first, Bork’s controversial moral views concerning hot-button issues like abortion and women’s reproductive freedom; and second, his espousal of a very robust, and in the view of many, naive version of “originalism,” the view (to be explored more fully below) that constitutional provisions are to interpreted solely in terms of “original understandings.” So constitutional interpretation is not an arcane subject confined to the often-arid landscape of academic disputation. It is an issue of great public and political interest—and, of course, controversy. Here are some of the more salient questions that arise when the subject of constitutional interpretation comes to the fore.
Is constitutional interpretation at all like interpretation in disciplines like literary studies or history, or perhaps even the natural and social sciences where investigators are sometimes said to interpret the available data? Some think so, viewing interpretation itself as a kind of generic social practice of which literary criticism, historical analysis and constitutional interpretation are species (Dworkin 1986; Fish 1989). Dworkin develops a very general theory of interpretation, focusing on what he calls “constructive interpretation,” from which it follows that the interpretation of a novel, or a series of decisions concerning the requirements of a written constitution, always represents an attempt to make the object of interpretation “the best it/they can be.” Of course interpretation can sometimes be of a form quite different from the shape it takes when one interprets a text or string of words, where one attempts to reveal or exhibit the meaning of one set of words by way of a second set of words. We often talk of historians interpreting historical trends, actors interpreting plays and even musicians interpreting musical scores. Thus, a further question one might ask, should one seek to derive a theory of constitutional interpretation from a more general theory, is the following: is constitutional interpretation similar in any important and relevant ways to historical interpretation or to what we might call “interpretive performances,” such as an interpretation, by the Berlin Philharmonic, of Beethoven’s Ninth? The latter, of course, is an interpretive performance we might, in turn, be led to describe (in our own written interpretation of that interpretive performance) as a tour de force, displaying aspects of Beethoven’s creative masterpiece that had hitherto lain underappreciated or undiscovered.
This strategy of generating a theory of constitutional interpretation from a very general theory of interpretation, though perhaps interesting and promising in some contexts, is not one that is generally pursued by constitutional scholars. Instead, the focus is on explaining how constitutional interpretation relates to other forms of legal interpretation. And that is the course we will pursue in this entry. Narrowing our focus, then, we might begin by asking this important question: to what extent is constitutional interpretation like the interpretation of ordinary statutes? Perhaps the answer depends on whether the constitution consists entirely, partly or even at all, of written instruments, such as the Basic Law for the Federal Republic of Germany or Canada’s Constitution Act, 1982. There is, of course, no necessity that constitutional law includes, let alone exclusively, written instruments. A state’s constitution might consist almost entirely of important common-law rules, customs and conventions, as was often said of the United Kingdom for centuries. But this is not the norm. Usually a state’s constitution includes at least one central written instrument. Yet another point to bear in mind is that constitutional law may be different from the constitution, where the latter is meant to refer to a historical document like the United States Constitution. It can, as just noted, include various rules, customs and conventions, as well as years worth of interpretive decisions originating in court decisions revolving around the requirements of the relevant written instrument(s) . One might argue that the constitution, properly construed, includes these interpretive decisions. This is the view of David Strauss, who distinguishes, for purposes of United States law, between the written U.S. Constitution and the “small- c constitution: the constitution as it actually operates, in practice” (Strauss 2010: 35). The “living constitution,” he suggests, is the two combined. Whether this is true, or whether such decisions are better classified as part of constitutional law (not the constitution itself) is an interesting question with which we needn’t be concerned. The point remains that discussions of constitutional interpretation almost invariably focus on the interpretation of written constitutional instruments—and it is on the interpretation of these that we will focus.
To what extent, then, is the interpretation of a constitutional instrument like the United States Constitution similar to the interpretation of an ordinary penal statute passed by Congress? It is tempting to answer that interpretation must be roughly the same in both contexts. After all, in each case what takes place is the interpretation of a canonical string of words, normally put together, adopted and ceremoniously proclaimed by way of special acts of special persons with the authority to create that particular kind of legal norm. But that answer would be far from correct. Interpreting the United States Constitution is a decidedly different enterprise from interpreting the U.S. Copyright Act of 1976. The fact that the former is the constitution and the latter an ordinary Act of Congress marks a significant difference between the two activities, a difference largely dependent on special features of constitutions and the role(s) they play in law, politics and social life, differences to which we will return below. That there are these crucial differences suggests a decidedly different approach to the interpretation of a constitution. This is particularly so when a case turns on how we are to interpret those provisions that deal with abstract civil rights (e.g., the right to due process of law or to equality) over which there is so much controversy and upon which we will focus in this entry. What exactly that different approach is, or ought to be, in the case of constitutional interpretation, is the subject of intense controversy among legal practitioners and theorists. Views range from those who espouse originalism to those who reject this approach as either politically and morally unattractive, impossible to implement in practice or largely or entirely incoherent. As we shall see, these stark differences of view are usually rooted in very different views on either the proper role of a constitution or on the appropriate role of a judge within constitutional democracies.
A further, central issue that figures prominently in discussions about constitutional interpretation is this: is that practice, when pursued properly—i.e., as an exercise of interpretation, not something else masquerading as interpretation—exclusively a matter of attempting to retrieve, so as to conserve and apply, existing meaning(s)? If so, in what do such existing meanings consist? Is an attempt to interpret a constitutional text perhaps an attempt to discern the intentions of its authors? If this is the route one must take, then yet another question immediately arises: who precisely are to count as the constitution’s authors? Those who wrote it up? Those who approved it at a special constitutional convention? Those, e.g., individual state governments, who later ratified what the authors had earlier created, as occurred in the United States? These last two answers assume, however, forms of constitutional creation that are not always present. Constitutions sometimes come into existence in the absence of an originating convention, and often do so without anything remotely like a formal process of ratification. Sometimes constitutions come about through the normal activities of legislative bodies like Parliament or the Bundestag. At other times, they are simply imposed by one political regime and taken up later by a new regime, or eventually accepted by a population which may initially have struggled against the original imposition but now accepts both the legitimacy of the imposing regime and its constitution. This latter scenario might be thought to raise yet another possibility: that the true authors of a constitution are, in reality, “the people” whose constitution it is. This, however, stretches the idea of authorship beyond the bounds of intelligibility. “The people” may reasonably be said to have accepted, or perhaps even consented to or adopted, the constitution, and these facts may serve a crucial role in determining a constitution’s legitimacy. But this is a far cry from saying that the constitution belongs to them as the creative product of their authorship.
Let’s assume that the constitution did have specific authors and that we know their identities. If interpreting the constitution is in some way tied to the intentions of these authors, then yet another question immediately arises: which of the possibly many intentions they might have had are we to attempt to discern for purposes of constitutional interpretation? Are we, perhaps, to focus exclusively on the intention to create fundamental laws understood according to the usual conventions of understanding prevalent within the relevant community at the time of authorship? It is this intention, but applied to conventions existing at the time of interpretation, that (Joseph Raz 1996) claims must, of necessity, govern all attempts to interpret the existing meaning of enacted law. Whether other kinds of intentions can count is, for Raz, dependent on a number of factors which may vary from one situation to the next. In any event, if we accept some such convention-based answer to our question, a further question now emerges: what is the relevant community whose conventions count in determining constitutional meaning? The population at large? The community of prominent political actors whose views and actions were in some way instrumental in the constitution’s creation? Lawyers? Constitutional lawyers? One reason we might want to identify the relevant community with one of the latter two groups is that legal meanings often diverge from the ways in which terms are widely understood within the general population. In some jurisdictions the legal meaning of the word “assault” (the threat of violence) is quite different from the meaning of the word “battery” (actual physical violence) whereas in general parlance, assault is understood to involve the latter. There is little reason to believe that similar divergences of meaning do not exist at the constitutional level, where phrases like “due process of law” and “freedom of speech” often take on meanings that diverge considerably from ordinary meanings.
So the identity of the relevant community of understanding can be crucial. Yet another question that emerges, once we begin to focus on authorial intentions, is this: should we sometimes, or perhaps even always, count the purposes the authors sought to achieve by enacting what they did? But which purposes and at which level of generality? In some very general sense, the purpose of every constitutional provision is to effect the realization of justice, or at least a reasonable balance of all the relevant values and principles at play in creating a constitution. But presumably this is not much help in settling difficult interpretive questions. So perhaps we must look for something more specific, e.g., the goal of fostering a vibrant democracy, which arguably is one of the central purposes behind free-expression guarantees? But is this specific enough? Or must we look for something even more concrete? Must we also count as relevant the particular applications the authors intended their words to cover—the specific kinds of things they intended to protect, prohibit or permit, e.g., the freedom to express a political opinion in a newspaper? If intended applications don’t count, then we’ll need to know why. If they do count, then we’re faced with further questions: what if we have very good evidence that the authors were actually very poor draftsmen, selecting words whose conventional understandings may lead to applications that would thwart or hinder achievement of the very goals and purposes they intended or hoped to realize? How are constitutional interpreters to deal with these conflicting intentions? And finally, how does one interpret when, as is all too often the case, we have inconclusive evidence as to what the relevant authors’ intentions might have been? Perhaps some of the authors intended X, while others intended Y.
Our discussion thus far has assumed that constitutional interpretation consists exclusively of a retrieval exercise, that is, an exercise of retrieving so as to conserve and apply already existing meaning(s). But is there sometimes, usually or perhaps even always, a decidedly creative or innovative aspect to constitutional interpretation, at least in some contexts? In other words, does constitutional interpretation sometimes alter, develop or replace existing meanings, that is, consist in what we will call “ innovative interpretation”? The thought that it does, indeed must, has an air of plausibility, if only because many constitutional provisions, e.g., those upon which we are focusing, namely those we find in bills or charters of rights, are expressed in highly abstract moral terms like “equality,” “due process” or “the principles of fundamental justice.” As such, their interpretations seem ripe for alteration, development and supplementation, in much the same way that our nonlegal interpretations of abstract moral principles often change as we come to better (or at the very least different) understandings of morality’s many demands. As recognized in ([Edwards 1930] A.C. 124), now commonly referred to as “The Persons Case,” there is a very real and important sense in which moral equality meant something decixdedly different in 1930 than it did in the nineteenth century, before women were considered “persons” for purposes of common law. It may even be the case that it meant something different in the United States immediately after the Supreme Court’s denouncement of racial segregation in Brown ((1954) 347 U.S. 483) than it did immediately before that landmark decision. But if this is true, then we are faced with another, equally difficult question: if constitutional meanings can or must change by way of innovative interpretation, what is to be done if new, current meanings contradict, say, the meanings the authors can be presumed to have intended, had in mind or presupposed when they did what they did—i.e., enact such and such a string of words with these particular meanings? This, as suggested above, is a distinct possibility. It is highly plausible to suppose, e.g., that the authors of the Fourteenth Amendment to the United States Constitution understood “equal protection of the laws” in ways that did not authorize courts to declare separate but equal facilities unconstitutional. Yet the current understanding of that phrase, both within the United States and elsewhere, is such as to render such facilities clearly unconstitutional. If this is so, and if these changes are considered well within the boundaries of justified constitutional development brought about through innovative constitutional interpretation, then what sense can we make of the idea of constitutional authorship and the authority seemingly tied up with this practice? Can such steps be taken and yet the practice of constitutional interpretation remain genuinely interpretative? Does constitutional interpretation become nothing more than making constitutional texts mean whatever we want them to mean?
So perhaps allowing for so-called innovative interpretation actually results in a type of activity essentially different from what we can meaningfully call “constitutional interpretation.” That is, maybe what we have in such cases is not constitutional interpretation but revision, amendment or construction. In all such cases of so-called innovative constitutional interpretation, the existing constitution will simply have been replaced, in part, with something else newly created by the act(s) of the interpreter(s). Those who begin to feel uneasy about such a prospect—i.e., the prospect that innovative judicial interpreters are actually changing the constitution while purporting to interpret it—have at least three options. One is simply to declare such innovative interpretations out of bounds for the judiciary, an option taken by many originalists. But this is not a strategy open only to such theorists. It is also, somewhat paradoxically, a view endorsed by Ronald Dworkin, one of originalism’s most forceful critics. Dworkin’s distinction between “concepts” and “conceptions” (1977) and his claim that constitutional authors (often) intend to enact provisions embodying the former but not the latter, allows him, he believes, to claim that the meanings of the rights provisions of a constitution—i.e., the abstract concepts or principles of political morality it embodies—have not changed, despite the radically different constructive interpretations of those abstract concepts and principles endorsed by constitutional interpreters over time. On this view, an innovative interpretation is one that introduces a new interpretation of an unchanged abstract principle embodied in a constitution whose authorial meaning remains unaltered.
A second option for those worried over the prospect that innovative interpretation actually changes the constitution is to find some way to make sense of the idea that changed meaning does not have this result. More concretely, one might try to explain the idea that the Fourteenth Amendment to the United States Constitution has not changed even though its (unchanged) guarantee of equal protection of the laws once meant that separate but equal schools are constitutionally permissible and now means that this institutional arrangement stands as an unqualified repudiation of that protection. The prospects of success here seem dim, however, unless one identifies a constitution with nothing more than the particular string of words—the marks on paper—included within the written instrument. Now, it is true that innovative constitutional interpretations do not affect the actual string of words included within the written constitution. The phrase “equal protection of the laws” was introduced in 1868 and remains there to this day, despite the new understandings of its meaning developed and endorsed over the years. So constitutional interpretation, even when it results in a radically new understanding, is clearly different from the process of formal constitutional amendment, where new words are added or old ones are eliminated and possibly replaced with new ones. But this difference between formal amendment and innovative constitutional interpretation, significant though it may be, is not going to alleviate the concerns of those worried about the latter. And the reason is simple: it would be a serious mistake to view laws, and hence constitutional laws, as nothing more than strings of words. They are the norms expressed by those strings of words within a particular context (of utterance, use or understanding). They are, if you like, the meanings of the relevant string of words found within the written document, its actual content. And so the identity of the constitution created by an act of constitutional authorship is partly a function of the meaning of the string of words chosen, however that meaning is identified. If this is right, then when constitutional meaning changes, the constitution changes right along with it. And we are once again left to face the serious moral and political questions that result.